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Johnson Baran Corp v. Ocean County Board of Freeholders

June 27, 2011

JOHNSON BARAN CORP., PLAINTIFF-APPELLANT,
v.
OCEAN COUNTY BOARD OF FREEHOLDERS, OCEAN COUNTY ENGINEERING DEPARTMENT AND SWIFT PAVING CO., INC. DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. L-1067-10.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 11, 011

Before Judges Ashrafi and Newman.

This is an appeal by the second lowest bidder plaintiff, Johnson Baran Corp., from an award of a county construction project to the lowest responsible bidder, defendant*fn1 Swift Paving, Inc. Plaintiff maintained that statements made by defendant in the winning bid submission regarding ownership of necessary equipment, a milling machine, were erroneous and, as such, the bid was defective and should have been rejected. The trial court found that any alleged defect in the bid documents was waivable by the county and upheld the bid award to defendant. We agree and affirm.

The essential facts are not in dispute and are as follows. In February 2010, the County of Ocean (the County) circulated an invitation to bid entitled "Bid Specifications for Hiring of a Pavement Profiler - Bid Category: Public Works, Park Equipment, and Construction Services" (the Project). The twenty-eight page listing of bid specifications (the bid packet) included a number of provisions governing the submission of bids and acceptance thereof by the County, as well as forms that were to be completed and returned by bidders.

Section 1008 of the bid packet set forth a description of the machinery required for the Project - namely, a "milling machine," described as "a self-propelled and self-loading planing, grinding or cutting machine . . . capable of removing bituminous concrete without the use of heat . . . ." No specific model of milling machine was required. Section 1008 also included a form, titled "Plan and Equipment Questionnaire" (the Questionnaire), listing several questions relating to the equipment required for the Project:

7. What equipment do you own that is available for and intended to be used on the proposed project?

8. What equipment do you intend to purchase or lease for use on the proposed work, should the contract be awarded to you?

Bidders were required to answer either or both of Questions 7 and 8 by filling in the quantity, description, and condition of equipment either owned or intended to be purchased or leased. The form then required the bidder to sign, date, and notarize a statement indicating that:

9. Have you made contracts or received firm offers for all materials within prices used in preparing your proposal? Do not give names of dealers or manufacturers.

The undersigned hereby declare that the items of equipment [listed in response to Question 7] are owned by [name of company], and are available for and intended to be used on the Project, if awarded the contract, and that [name of company] propose to purchase or lease for the Project the additional items of equipment stated in [response to Question 8].

Both plaintiff and defendant submitted bids on the Project. Defendant's bid submission, dated February 8, 2010, included the following ...


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